Citation Nr: 1531433
Decision Date: 07/23/15 Archive Date: 08/05/15
DOCKET NO. 09-07 253 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUES
1. Entitlement to a rating in excess of 10 percent prior to August 2, 2012 and to a rating in excess of 20 percent from August 2, 2012 for service-connected left shoulder chronic tendonitis.
2. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee.
3. Entitlement to total disability based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A.M. Clark, Counsel
INTRODUCTION
The Veteran served on active duty from September 1968 to June 1972 and from June 1974 to September 1992.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the RO in Indianapolis, Indiana.
The Veteran testified before the undersigned at an April 2012 hearing at the RO. A transcript has been associated with the file.
This case was most recently before the Board in July 2012 when increased rating claims for service-connected left ear hearing loss and right shoulder impingement syndrome with postoperative residuals were denied. His increased rating claims for left shoulder chronic tendonitis and left knee chondromalacia were remanded for additional development. A March 2013 supplemental statement of the case was issued and the case is once again before the Board.
The Veteran did not file a formal claim for a TDIU during the course of this appeal. However, a review of the evidence reflects that the issue of a total disability rating based on individual unemployability (TDIU) has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record.
In light of the Veteran's statements at his August 2012 shoulder VA examination, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran's increased rating claim, as reflected on the first page of this decision.
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the 'Virtual VA' system to insure a total review of the evidence.
The issues of entitlement to a rating in excess of 10 percent for chondromalacia of the left knee and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran is ambidextrous; his left shoulder is considered dominant for rating purposes.
2. For the entire period on appeal, the Veteran's major left shoulder disability is manifested by complaints of pain and limitation of motion at most to midway between the side and shoulder level; limitation of motion to 25 degrees or anklyosis have not been demonstrated.
CONCLUSIONS OF LAW
1. Prior to August 2, 2012, a rating of 30 percent, but no higher, is warranted for service-connected left shoulder chronic tendonitis. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.69, 4.71a, Diagnostic Code (DC) 5201 (2014).
2. Since August 2, 2012, a rating of 30 percent, but no higher, is warranted for service-connected left shoulder chronic tendonitis. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.69, 4.71a, DC 5201 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2014). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014).
The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2014). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.
VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).
As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The current appeal arises out of a claim received at the RO in August 2006. In a March 2007 rating decision, the RO denied an increased rating for the Veteran's left shoulder chronic tendonitis. In February 2013, the rating was increased to 20 percent, effective August 2, 2012. The effective date corresponds to a VA examination report.
Motion of the shoulder/arm is measured based on the ability to move the arm from a position at the side of the body to a position over the head. Both abduction and elevation (flexion) of the arm is from 0 degrees when the arm is straight down at the side of the body, to 90 degrees when the arm is straight out from the body at the shoulder level, to 180 degrees when the arm is straight up, by the head. The ability to rotate the shoulder is from 0 degrees when the arm is at shoulder level, flexed at the elbow, with external rotation to 90 degrees moving the arm up towards the head and internal rotation to 90 degrees when moving the arm down towards the body. 38 C.F.R. § 4.71, Plate I.
The Veteran's service-connected left shoulder disability has been evaluated as 10 percent prior to August 2, 2012 and at 20 percent disabling since August 2, 2012, under Diagnostic Code 5201.
The Board initially notes that VA examinations of record reflect that the Veteran is ambidextrous. 38 C.F.R. § 4.69 provides that the injured hand or most severely injured hand of an ambidextrous individual will be considered the dominant hand for rating purposes. As noted in the July 2012 BVA decision and remand the Veteran's left shoulder is considered his dominant shoulder.
Diagnostic Code 5201 provides that limitation of motion of the major arm shall be rated at 20 percent for limitation at shoulder level, 30 percent for limitation midway between side and shoulder level, and 40 percent for limitation to 25 degrees from side.
A November 2006 VA examination reflected flexion to 170 degrees, with abduction to 180 degrees. However, in a July 2007 private treatment record the Veteran's private treating physician noted that the Veteran had 85 degrees of abduction in his left shoulder. A December 2007 VA treatment record noted restricted range of motion to 90 degrees, with abduction to 80 degrees.
At a November 2010 VA examination the Veteran demonstrated 150 degrees of flexion and abduction. Pain was noted with active motion. Nevertheless, the VA examiner did not specifically note at which degree pain was first noted. At an August 2012 VA examination the Veteran demonstrated 75 degrees of flexion of his left shoulder with pain beginning at 70 degrees. He additionally demonstrated 85 degrees of left shoulder abduction, with pain beginning at 80 degrees. Following repetitive testing the Veteran was still able to demonstrate 75 degrees of flexion and 85 degrees of abduction in the left shoulder. At a December 2012 VA physical therapy appointment the Veteran demonstrated flexion to 110 degrees, with abduction to 80 degrees.
The Board notes that in granting a 20 percent rating for the Veteran's left shoulder, the RO in the February 2013 rating decision acknowledged that the Veteran's left shoulder range of motion was limited to midway between his side and shoulder level. It was noted that a higher rating was not warranted unless arm motion was limited to 25 degrees from the side.
Correctly applied to the rating criteria for the major extremity this warrants a 30 percent rating for the Veteran's left shoulder.
After a review of all the evidence, the Board finds that a 30 percent rating is warranted for the entire period on appeal. In essence, the Board can determine no distinction in the Veteran's symptomatology prior to and after the effective date chosen by the RO. The Board finds that, when giving the Veteran the benefit of the doubt, a 30 percent evaluation is warranted throughout the appeal period, but no more. The best, most probative evidence in this case (while not all evidence in this case) supports a 30 percent finding, but no more, at this time. The record clearly indicates that the Veteran has had many problems with his left shoulder.
Based on an extensive review of the evidence, including both private and VA treatment records, and VA examinations, the Board finds it is factually ascertainable that the Veteran's painful range of motion symptoms have been most consistent with a 30 percent disability rating, throughout the period on appeal. Therefore a 30 percent rating is warranted for his service-connected left shoulder for the entire period on appeal.
Nevertheless, the Board finds that the criteria for a 40 percent rating are not met, at any point during the period on appeal, as it has not been shown that the Veteran has limitation of motion of his arm to 25 degrees from the side. At the worse, the Veteran's limitation was to 70 degrees out of a maximum range of 180 degrees, even when considering pain. This is the equivalent to midway between the side and shoulder level in the rating code.
The Board has considered the DeLuca factors, but has determined that there is no functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Without taking into consideration pain, there would be little basis for the current evaluations.
The Board has considered other potentially applicable diagnostic criteria that may result in a higher evaluation. However, a higher evaluation is not warranted under any alternate Diagnostic Code at any point in the appeal period. The Board finds that the Veteran would not qualify for a higher evaluation under diagnostic code 5200 because there is no evidence of scapulohumeral articulation ankylosis. The Veteran does not warrant a higher evaluation under diagnostic code 5201 because there is no evidence of limitation of motion of the arm to 25 degrees or less from the side. Moreover, a higher rating under diagnostic code 5202 requires a flail shoulder, false flail joint, or fibrous union of the humerus; none of which are shown by the evidence. Lastly, diagnostic code 5203 is limited to an evaluation of 20 percent for impairment of the clavicle or scapula. As such, a higher evaluation under Diagnostic Codes 5200, 5201, 5202, or 5203 is not warranted. The Veteran's chronic tendonitis of the left shoulder is rated based on limitation of motion, which would be encompassed within Diagnostic Code 5202.
For the foregoing reasons, after consideration of all possibly applicable diagnostic codes, there is no basis to assign an evaluation in excess of 30 percent for the Veteran's service-connected left shoulder. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 40 percent. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
With respect to the Veteran's claim, the Board has considered whether an extraschedular rating under 38 C.F.R. § 3.321 is warranted. The Board finds that the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
The Board further notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
II. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in October 2006 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b). As such, the VCAA duty to notify was satisfied.
The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions. Private records have additionally been reviewed. Moreover, the Board has reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file.
Discussion of the Veteran's April 2012 Veterans Law Judge (VLJ) hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was considered at the hearing. Sources of evidence relevant in this regard were identified during this hearing. Indeed, as noted above, the Board remanded the Veteran's claim in July 2012 for further development. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Next, the Veteran was afforded examinations for left shoulder in November 2006, November 2010, and August 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left shoulder since the most recent VA examination. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.
A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As already noted, the matter was remanded in July 2012. All the remand actions were accomplished, and the Board finds that there has been substantial compliance with the July 2012 Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).
The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Prior to August 2, 2012, a 30 percent rating, but no higher, for service-connected left shoulder chronic tendonitis, is granted.
Since August 2, 2012, a 30 percent rating, but no higher, for service-connected left shoulder chronic tendonitis, is granted.
REMAND
Increased Rating Knee- With respect to the Veteran's increased rating claim for his left knee, the Veteran was last afforded a VA examination in November 2010.
More importantly, the Veteran has essentially indicated, through his representative, that his left knee has worsened since his last VA examination. See May 2015 Post-Remand Brief.
Additionally, VA treatment records in the Veteran's virtual claims file reflects that he has been advised to receive steroid injections in his left knee to treat his pain. At the Veteran's most recent November 2010 VA examination he was not receiving steroid injections in his knee.
As such, the Board finds that the Veteran should be afforded new VA examination in order to determine the current nature and severity of his service-connected left knee. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
TDIU- As noted above, the Court has held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran reported at his August 2012 VA examination that his left shoulder affects his employability. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. It is unclear from the record whether the Veteran is currently unemployed. The Board finds that VCAA notice and a VA examination should be provided.
Accordingly, the case is REMANDED for the following actions:
1. Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for TDIU. If this issue is not being raised, the representative of the Veteran should make this clear (and it writing).
2. Contact the Veteran and afford him the opportunity to identify names of all VA and non-VA health care providers or submit any additional pertinent evidence in support of his claim of TDIU. If these records are unavailable, document this in the claims file.
3. Schedule the Veteran for VA examinations to determine the nature and severity of his service-connected left knee.
The Veteran's claims file should be provided to the examiner. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.
4. Following the development in Remand paragraphs 1 and 2, the Veteran should be afforded a VA examination with opinion to determine whether he is at least as likely as not (50% or greater chance) unemployable solely due to his service-connected disabilities, standing alone.
The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone are of such severity to result in unemployability.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected conditions on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not due to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.
5. After completing the above, and any other development deemed necessary, readjudicate the issues currently on appeal with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if needed.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs